Saturday, September 10, 2005

'Email, the Internet and the Law'

This was the introduction to 'Email, the Internet and the Law' which was published by EMIS Professional Publishing in 2001 and written by myself and Paul McGrath.

“A long time ago, maybe last Thursday …” A.A.Milne.

Every society is based upon communication and every major development in a society may be measured by the changes in those means of communication. From the spreading of the gospel by mendicant preachers, to fifteenth century explorers of the high seas, information was dispersed to all corners of the globe. The industrial revolution itself was founded upon developments such as Stephenson’s steam locomotive, Telford’s canals and the development of turnpike roads. Naturally, these led the way for the formation of the first official postal system using pre-paid stamps and post boxes in the nineteenth century.

The internetSo it is said today that the development of the internet constitutes the next major change in society as it moves from the industrial to the information age.

Its history begins with the launch of Sputnik by the USSR in 1957. In response, the USA formed a department to establish a lead in science and technology applicable to the military. This led in 1962 to a study on how the USA could maintain its command and control over its missiles and bombers, after a nuclear attack, which eventually resulted in the first electronic network, ARPANET, being constructed in 1969 and the first e-mail program being created by Ray Tomlinson in 1972.

At first used only by the military and academia, it was not until 1990 that the world wide web came into being thanks to Englishman Tim Berners-Lee who, whilst working at CERN in Geneva, implemented a hypertext system to provide efficient information access to the members of the international high-energy physics community. The “www” came into being.

The final piece of the jigsaw came in 1993 when Marc Andreessen developed a graphical user interface to the www called "Mosaic for X" which was the first popular web browser for personal computers. Pictures and graphical documents could then be more easily viewed and cross-referenced on the internet and the commercialisation had begun. Marc Andreessen himself was the first to capitalise on this with the introduction of the Netscape browser and not to be outdone, Microsoft introduced its own Internet Explorer.

Equally as apocryphal as the rise of Netscape and the browser is that of Yahoo! and the search engine. Started in 1994 in a trailer as a student hobby, it went public in 1996 and by 1 March 2000 had a market capitalisation of $83.45 billion. Once again, where Yahoo! went, others followed and there is now a plethora of search engines available which help to sift and organise the information now available on-line.

By September 2000 it was estimated that over 370 million people were on-line world-wide with over 100 million of those in Europe.

The future lies in building upon these developments with, for example, higher speed connections such as ADSL (Asymmetric Digital Subscriber Line) and the convergence of the various forms of media such as television, radio and computers through emerging technologies such as Bluetooth.

E-mailElectronic communications developed alongside the internet. The biggest hurdle to overcome was to get different computers using different operating systems to be able to read each others’ messages.

The most significant step in this regard was the introduction of the Simple Mail Transfer Protocol (SMTP) in 1981. The other major development was the introduction of the post-office protocol (POP) which allowed messages to be stored until the user logged on, at which point they are automatically downloaded from the server.

Today, almost all commercial e-mail is sent and received by clients and servers using SMTP or POP3 (the most recent version of POP). However, in recent years there has been an explosion in the use of personal e-mail due to the introduction of web-based services such as Hotmail. These allow the user easy access to their e-mail account from computers other than their own, as well as enabling them to maintain the same e-mail address through changes of service provider.

As well as the technical difficulties, in order to be effective the use of e-mail had to be popularised. Compuserve (now owned by AOL), the internet service provider, for example, was started in 1969 but was not then connected to the internet. They first offered e-mail between Compuserve users in 1979 and real-time chat in 1980. In 1989 they became one of the first two commercial carriers to relay electronic mail to and from the internet in 1989. Perhaps most significantly, Hotmail, the free internet-based e-mail service started in 1995.

In a recent study of the internet by UCLA (www.ccp.ucla.edu), it was found that some 84% of people on-line have e-mail accounts and over 40% check their e-mail more than once a day.

Mobile phones Alongside these developments, mobile phone technology developed its own form of data packaging with the development of the short message service (“SMS”) which was conceived as part of the Global System for Mobile communications (GSM) digital standard. This has been followed by the Wireless Application Protocol (“WAP”) which provides for limited access to the internet and for the use of e-mail from a mobile phone. Once again, the speed of the connection will be the key and third generation mobiles utilising the Universal Mobile Telephone System (“UMTS”) promise to bring the mobile phone into line with other forms of media in this area.

The law The law is an organic being which has always managed to evolve to keep up with changes in society. However, the challenge posed by the growth of the internet is perhaps its biggest yet not just because of its sheer size, nor the speed with which it has developed. The relationship between law and the internet is based upon a simple conflict:- laws exist to regulate society;- the internet has created a new society founded upon the principle that it should be wholly unregulated.

The history of the internet itself is one of decentralisation. Even as far back as 1962, when Paul Baran was commissioned by the US government to study how it could survive a nuclear attack, he envisaged a military research network that was decentralised so that if any locations in the USA were attacked, the military could still have control of nuclear arms for a counter-attack.

Coupled with this has been the romantic idea that the new technologies would form the basis for a true renaissance in learning and culture which would transcend cultural, religious and political boundaries. In one sense the idea represented the apotheosis of the free market, where information is perfect and regulation non-existent.

With this as a backdrop, the law has struggled to keep pace with the new developments and it is no surprise that many legal developments have proved to be controversial. Old legal concepts have been successfully adapted to the new technology but the underlying tension remains: freedom or regulation.

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Writer

The Barrister Blog is written by Tim Kevan who is a co-founder of Law Brief Publishing which publishes hard copy books, an online law journal and email newsletters. He is the author of the BabyBarista series of novels published by Bloomsbury: Law and Disorder (2009) and Law and Peace(2011). They are based on the BabyBarista Blog which appeared on The Times online for three years and The Guardian online for two years. He is also the co-author of Why Lawyers Should Surf. He practised as a barrister in London for ten years. He now lives in Braunton in North Devon with his wife Louise, daughters Grace and Hope and dog Jack. He previously co-founded a business which was sold to Thomson Reuters. See www.timkevan.com. The BabyBarista cartoons are by Alex Williams who also does the Queen's Counsel cartoons for The Times.

Law and Disorder

Law and Disorder (originally called BabyBarista and the Art of War) is published by Bloomsbury and was described by broadcaster Jeremy Vine as "a wonderful, racing read - well-drawn, smartly plotted and laugh out loud" and by The Times as "a cross between The Talented Mr Ripley, Rumpole and Bridget Jones’s Diary". It is based is based on the BabyBarista Blog which previously appeared on The Times for three years and is now with The Guardian and which was described by The Lawyer as "genius".